Abortion is a Human Right Guaranteed by the U.S Constitution
On June 22, 2022, The Supreme Court overturned the case Roe v. Wade (1973) (“Roe”), ending the federal right to abortion. In 1970, Jane Roe filed a lawsuit against Henry Wade, who was the district attorney of Dallas County in Texas, where Jane Roe lived. With this lawsuit, she challenged the Texas law that made abortion illegal unless a doctor's orders were obtained to save a woman's life. Roe’s stance and main argument, in this case, were that the state laws were unconstitutionally vague and abridged her right to privacy protected by the Constitution by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Court decided, by a 7- 2 majority, that the Due Process Clause of the Fourteenth Amendment — which says that “no state shall deprive any person of life, liberty, and property, without due process of law” — implies the right to privacy that protects the women's choice to have an abortion [1]. They also saw this decision as one that protects women's health. They further decided that a state law that prohibits abortion violates that right, and that only the pregnant woman and her attending physician can make that decision.
Dobbs v. Jackson Women’s Health Organization (2022) (“Dobbs”) overturned Roe. In 2018, Mississippi passed “The Gastionational Age Act,” which codified the prohibition of all abortions, with very few exceptions, after the first 15 weeks of the pregnancy. One of the doctors from the only licensed abortion facility in Mississippi, Jackson Women’s Health Organization, filed a lawsuit requesting a temporary restraining order and challenging the newly established Mississippi law. The litigation proceeded from the district court to discovery after the temporary restraining order (“TRO”) was granted. After discovery, the district court approved the clinic's request for summary judgment and prohibited Mississippi from enforcing the law. The main reason behind these decisions was that the state had not provided evidence that a fetus would be viable at 15 weeks - which means that it has reached a state of development so as to be capable of living under normal conditions outside the uterus [2]. Mississippi argued that the Constitution does not provide the right to abortion, and therefore it is up to the states to decide. Their main argument was the Tenth Amendment, which denies certain powers to the state but not the power to restrict abortion explicitly. Dobbs resulted in the overturning of Roe and Planned Parenthood of Southeastern Pa. v. Casey (1992) (“Casey”), both cases that supported the right to abortion. The majority opinion argument relied on the Constitution making no clear reference to abortion, to which the Court argued that there is no such right implicitly protected by any constitutional provisions, including the Due Process Clause of the Fourteenth Amendment [3].
Dobbs has a big flaw in its decision. The Supreme Court does not make any declaration of the personhood of the fetus, fully leaving it to the states to define that. This opens the way for states to make drastically different laws from each other and ones that define the fetus as a person, which raises further legal issues with great consequences. If a fetus is given a personhood status, all abortions could be considered murder. Classification of a fetus as a person, and consequently classification of abortion as murder can lead to a nationwide abortion ban, which can possibly go against The Fourteenth Amendment in many cases. The Amendment states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws [4].
However, the Court’s decision in Dobbs deprives biological women of their liberty and right to make decisions about their bodies. It can be argued that with this type of logic, individuals can be able to do anything with the excuse of having “liberty.” I clarify that this is not the case. Having the right to your own body and medical procedures that affect it is something that concerns only the individual and their own life. Although many people can be against abortion, their lives and health will not be affected by the decision of someone to have an abortion, and being able to do something that improves your life without damaging the life of another is your right to liberty. Additionally, none of us are stopped or deprived of receiving medical procedures that we feel are needed to improve our health and life, so how can the Court’s decisions deprive women of the liberty of having an abortion? Not recognizing the right to abortion as protected by the right to liberty can lead to not recognizing additional medical procedures not protected by this right as well. Will we not be able to receive medical help or procedures in the future because of this?
This decision does not only affect the right to liberty but the right to life as well. Denying abortions to certain demographics can drastically increase the number of maternal deaths. For example, Black women have a three times higher chance of dying while giving birth. Since a certain demographic would be affected negatively more than others, this decision could be considered discriminatory towards that demographic — which, in this case, is Black women — and violate the Equal Protection Clause [5]. Not only does this decision create an outcome where certain demographics are affected more negatively due to their race, but it also affects the majority of biological women, which can be deemed as discrimination based on sex. Dobbs creates restrictions for most biological women seeking the medical procedure of abortion but not for biological men seeking any type of medical procedure, which further goes against the Equal Protection Clause. The Court must take into consideration outcomes that affect the wellbeing of a large portion of the US population. In the Fourteenth and the Nineteenth Amendments, the Constitution prohibits the Court from decisions that target a certain demographic. As Dobbs affects the majority of biological women and does not affect biological men at all, it could be deemed unconstitutional.
In conclusion, the majority opinion in Dobbs is unconstitutional. Dobbs deprives people of their rights to their own body — as protected by the Fourteenth Amendment by the right to liberty — and in extreme cases, deprives people of their right to life since pregnancy can result in death and abortion being being illegal will result in people not receiving the medical procedure they need to live. Furthermore, Dobbs targets certain demographic groups which violates the Equal protection clause. Although this might not have been the Court’s intent, as the highest court in the federal judiciary, Justices must take highly dangerous outcomes into account when making a decision that affects a major part of the population of our nation. As outlined by the Constitution, that is their responsibility.
Bibliography
[1] Nunn, Joseph, Jennifer Ahearn, and Maya Efrati. “Roe v. Wade and Supreme Court Abortion Cases.” Brennan Center for Justice, April 21, 2022. https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases?fbclid=IwAR2Kz765sUBsiwqWn8pUki4YpcoxJ5XIvEl-o3OJui8uI1lC__Ix_JJhJU4_aem_AfgrWAFkIRW408Mm01VaIrZ7E38XR6HSpUUMVtGivgFGN7waH7ALIX-9h5PpMj5bFbY#:~:text=The%20Roe%20v.,-Wade%20opinion&text=The%20Supreme%20Court%20handed%20down,implies%20a%20right%20to%20privacy.
[2]Webster’s encyclopedic unabridged dictionary of the English language: The dictionary entries are based on the first edition of the Random House Dictionary of the English language. New York: Gramercy Books, 1996.
[3] “Dobbs v. Jackson Women’s Health Organization (2022).” National Constitution Center – constitutioncenter.org. Accessed October 18, 2023. https://constitutioncenter.org/the-constitution/supreme-court-case-library/dobbs-v-jackson-womens-health-organization.
[4] United States Constitution, 14th Amendment, Section 1
[5] An era of rights retractions: Dobbs as a case in point. Accessed October 9, 2023. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-end-of-the-rule-of-law/era-of-rights-retractions-dobbs-as-a-case-in-point/.